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Judge knocks down Central Bank Act again

For the second time in less than two months, a High Court judge has ruled that the Central Bank Amendment Act of 2011, which protects the cash-strapped CL Financial and its subsidiaries from legal action, is unconstitutional and void. In a 62-page judgment delivered in the Port-of-Spain High Court yesterday, Justice Ricky Rahim ruled that the legislation, which was passed two years after Government’s takeover of the troubled financial institution in 2009, breached the separation of powers.

Rahim said the legislation was in breach of the fundamental constitutional principle as it gives the Central Bank the judicial function of staying legal proceedings, by preventing claims being filed against the companies by its policyholders and creditors, while the companies remain under the control of the bank.

“The court has the power and the duty to review the actions of the legislature and executive to determine whether they are in conformity with the Constitution. In order to do so, the court must be able to exercise its power free from influence from the legislature and the executive,” Rahim said.

The judgment stems from a case brought by two Clico insurance agents—Myron Rudder and Barbara Kanhai—who were attempting to recoup the commissions and bonuses owed to them by the company, which amounted to almost $1.9 million.

On November 28, Rahim’s colleague Justice Ronnie Boodoosingh delivered a similar judgment in a lawsuit brought against Clico by Stone Street Capital, the private company of former CL Financial executive Andre Monteil. While, like Rahim, Boodoosingh ruled the legislation was unconstitutional, he went a step further to strike it out in its entirety, opening the door for litigants to file lawsuits to recover monies lost as a result of the collapse of the CL Financial conglomerate. Boodoosingh’s judgment is being appealed.

In his judgment, Rahim said he disagreed with the scope of Boodoosingh’s judgment and said his ruling on the unconstitutionality of the act would only apply to individuals who filed lawsuits before the legislation was passed in September 2011.

“The court is therefore of the view that once a claim has been instituted, a stay on that claim or in respect of the execution of judgment of that claim can only be granted by the court and any attempt by the legislature to aver unto itself such power breaches the doctrine of the separation of powers,” Rahim said. Because Rudder and Kanhai filed their lawsuits in 2012, Rahim ruled that they would not stand to benefit from his constitutional ruling.

In their lawsuit, the agents both claimed that in addition to breaching the separation of powers, the amendment also blocked their rights to access to the court. In response, the State’s legal team relied on an affidavit from former Finance Minister Winston Dookeran, who said: “The amendment did not deprive citizens of their rights to access the judicial process, but simply suspended it until the stay is lifted.”

The lawyers claimed at the time the legislation was passed there was a realistic danger of the collapse of the entire financial system and the objective of the act was to “maintain the integrity and stability of the financial system of T&T and to protect those whose interest are affected by it.” The agents also alleged that the legislation contravened their constitutional rights to property, equality before the law, a fair hearing and procedural provisions. Rahim rejected these claims.